Budden v. United States

15 F.3d 1444, 1994 WL 36148

Opinions

ORDER AMENDING OPINION AND DENYING PETITION FOR REHEARING

The majority opinion in this case, filed November 3, 1993, 8 F.3d 1278, is amended in these respects:

(1) The first sentence of the first complete paragraph on page 1283 of the opinion is modified to read:

The district court found that Budden also breached his duty by failing to exercise reasonable care under the circumstances. (Additional Findings on Remand, December 8, 1992.)

(2) The last full paragraph on page 1283 is modified to omit the period after the word “crash” and add the phrase “and operated as the sole proximate cause of the accident.”

(3) Footnote 10, at page 1285, is added to the opinion. The footnote reads:

10 Although the trial court should have phrased its ultimate proximate cause determination in terms of the pilot's independent, intervening negligence, the court’s analysis seems equivalent to such a determination. The trial court’s opinion emphasized that "the sole proximate cause of the accident was the negligence of Budden in continuing to fly into deteriorating weather conditions.” (Additional Findings on Remand, December 8, 1992.) The dissent suggests that the Government's negligence constituted a proximate cause of the accident as a matter of law, and that a remand is required for further findings on liability. We view the issue as fact specific and reiterate that while a different fact finder might have found otherwise, we cannot call the district court's proximate cause finding clearly erroneous.

The changes are incorporated into a revised opinion which, together with the dissent of Judge Lay, is attached for filing.

The court has carefully considered the appellant’s strong petition for rehearing. With the foregoing changes, the majority denies the petition for rehearing.